suppliers, insurance carriers, union officials and inside
employees of all ranks, improving plant cost efficiency and
safety, and taking over the tasks of the supervised employees
These managerial skills may be required in equal amount in the
comparison jobs. For example, according to Campbell, the
positions of Area Manager, Inspection; Area Manager,
Production; Area Manager, Container Manufacturing; Area
Manager, Warehouse and Shipping; and Manager, Cost Accounting,
involve scheduling and training supervised employees. Several
of these positions, like Howard's, require training
supervisors. All of the comparison jobs involve carrying out
already established jobs, with the additional discretion over
improving cost efficiency, safety, and attendance. The skills
of dealing with subordinates and overseeing their work are
exercised in all positions. That some of the supervision
involves overseeing different types of subordinate employee
activities may not prevent a determination of job equality.
First, the affidavits do not address whether or not supervising
the different tasks performed by the supervised employees
requires different skills, thereby preventing the jobs from
being interchangeable. See Wirtz v. Muskogee Jones Store
Company, 293 F. Supp. 1034, 1037, 1040. (E.D.Okla. 1968)
(supervisors in one store department could not perform in
another department so inequality of jobs found). Even if the
tasks are not interchangeable (in other words, requiring
different skills), the affidavits reveal neither the value nor
the percentage of supervisor time spent in performing the
different skilled work.
Certain of the holders of comparison jobs make much of alleged
"technical skills" that they believe necessary to their jobs.
However, the affidavits do not give the detail necessary on
this technical expertise to enable the court to conclude that
the skills for those jobs do not equal those for Howard's job.
The technical skills may be minimal or easily acquired. Or, the
skills may be utilized infrequently and may be a class of work
that commands lower salary if performed exclusively. Brennan
v. Board of Education, Jersey City, New Jersey, 374 F. Supp. 817,
828 (D.N.J. 1974) (citing Hodgson v. Brookhaven General
Hospital, 436 F.2d 719, 725 (5th Cir. 1970)).
Responsibility is another factor to be considered under the
Equal Pay Act in evaluating substantial job equality.
Responsibility has been held unequal when the male's job
required more creativity. Horner v. Mary Institute,
613 F.2d 706 (8th Cir. 1980) (male developed courses while female taught
already established courses). The extent of supervisory
functions is also a significant factor in comparing job
responsibilities. Orahood v. Board of Trustees, University of
Arkansas, 645 F.2d 651 (8th Cir. 1981). Supervisors who had
jurisdiction over substantially larger departments, budgets, or
staffs than the supervisor alleging discriminatory underpayment
have established inequality of jobs for Equal Pay Act purposes.
Young v. Columbia University College of Physicians and
Surgeons, 23 E.P.D. ¶ 31,058 (S.D.N.Y. 1980) (male supervised
eight times as many staff members and ten times as large budget
as did female); Shudtz v. Dean Witter & Co., 19 E.P.D. ¶ 9143
(S.D.N.Y. 1979) (male supervisor controlled branch over five
times as large as branch of female supervisor, had staff of
seven while female had staff of one, and created marketing
materials and headed road shows which female did not do). In
addition, responsibility is measured in part by the amount of
individual judgment the employee must exercise. Orr v. Frank
R. MacNeill & Son, Inc., 511 F.2d 166, 171 (5th Cir.),
423 U.S. 865, 96 S.Ct. 125, 46 L.Ed.2d 94 (1975); Maguire v. Trans
World Airlines, Inc., 535 F. Supp. 1283 (S.D.N.Y. 1982);
Kilpatrick v. Sweet, 262 F. Supp. 561 (M.D.Fla. 1967). The
greater value of materials, Usery v. Richman, 558 F.2d 1318
(8th Cir. 1977), or the greater volume of work, Orr v. Frank
R. MacNeill & Son, Inc., supra, handled by the male employee
has justified paying higher wages to the male. The differences
of responsibility must, however, be actual and
not theoretical. Hill v. J.C. Penney Co., 688 F.2d 370,
373-374 (5th Cir. 1982).
Howard supervised from 12 to 25 hourly employees and two
supervisors in the cafeteria alone. She also supervised a staff
in the employee benefits area. She would train, oversee,
schedule, and, when necessary, replace these employees. She
participated in hiring, firing, promotion, and pay increase
decisions, and played a role in union grievance procedures. In
addition to meeting hundreds of employees yearly to help them
with their benefits, Howard dealt with outside insurance
carriers, union officials, suppliers, and counsel. Her
immediate supervisors were the Plant Manager and Personnel
Manager. In addition, Howard has had discretion over
disbursements of almost two million dollars in the Group Health
Insurance program alone, with accountability for those
expenditures and the duty efficiently to dispose of such funds.
The comparison jobs require various levels of supervision over
other employees, discretion over budgets as high as three
million dollars, and participation in grievance procedures. The
largest apparent difference in responsibility concerns the
supervisory responsibilities of the Area Manager, Production
and the Area Manager, Warehouse and Shipping, who supervise 80
and 100 hourly employees respectively. Again, the inadequacy of
affidavits to solve the job comparison issue is demonstrated.
The court cannot discern how much time and skill was involved
in this supervision over so many hourly employees. In addition,
the evidence does not address the level of compensation such
(arguably ministerial) supervision could command if performed
exclusively. This same analysis applies to the claim that
supervision of machine operation, among the duties of Area
Manager, Inspection; Area Manager, Production; Area Manager,
Container Manufacturing; and Area Manager, Accounts Payable,
renders unequal Howard's different brand of supervision. The
time spent in overseeing proper machine functioning, the level
of skill necessary to perform it, and the value of the work are
unknown factors at this point.
A third requirement of Equal Pay Act coverage mandates that the
male and female jobs involve equal effort. Effort has been
interpreted as including physical as well as mental exertion.
E.g., Wirtz v. Dennison Manufacturing Co., 265 F. Supp. 787,
790 (D.Mass. 1967) (additional physical effort); Hodgson v.
Daisy Manufacturing Co., 317 F. Supp. 538, 551-552 (W.D.Ark.
1970), aff'd, 445 F.2d 823 (8th Cir. 1971) (additional mental
effort). Some courts have found that more physical work
required by one job can offset more mental work required by
another. Hodgson v. Daisy Manufacturing Co., supra.
The court cannot determine from the evidence in front of it
whether the comparison jobs involved different levels of effort
from Howard's. All jobs required working long hours and week
ends and necessitated juggling many different duties. Apart
from apparent differences in the amount of standing, walking,
and sitting entailed in the several jobs, they seem not to
require heavy physical work or, if required, that work appears
not to have consumed a great deal of time.
The last Equal Pay Act factor concerns the variance in job
working conditions. This "flexible standard,"
29 C.F.R. § 800.-131, has been flexibly applied. In one case, males who
worked outside of the office did not establish that their job
was performed under conditions differing from that of females
who worked inside the office. Wetzel v. Liberty Mutual
Insurance Co., 449 F. Supp. 397, 403-404 (W.D.Pa. 1978).
Accord Edmondson v. Simon, 497 F. Supp. 411, 414 (N.D.Ill.
1980) (no legally significant working condition differences
found when males conducted audits at place of business of
taxpayer or taxpayer's representative and female worked
entirely in employer's office). Given the few cases that have
discussed this point, 1 A. Larson Employment Discrimination,
§ 30.40, at 7-57 (1983), the court deems it necessary to hear
further evidence on the extent of the unpleasant conditions and
value of working in a plant as opposed to working in an office
The court is not convinced by the limited evidence before it
that the various supervisory jobs described by Campbell are
unequal to Howard's for Equal Pay Act purposes. This being the
case, Howard's Title VII salary discrimination claims must also
survive summary judgment. See Lanegan-Grimm, 560 F. Supp. at
490. Title VII's definition of "equality" for the purpose of
comparing salaries, although uncertain, is broader than that of
the Equal Pay Act. County of Washington v. Gunther,
452 U.S. 161, 101 S.Ct. 2242, 68 L.Ed.2d 751 (1981).
Accordingly Campbell's motion for summary judgment as to
Howard's Equal Pay Act and Title VII salary discrimination
claims is denied. This case is set for status hearing November
4, 1983 at 9:30 A.M.
It is so ordered.